been rendered against the personal representative, and there are no assets in his hands for its payment; and, second, where the estate has not been administered within one year from the death of the ancestor.1

§ 1468. Pleadings Against Heir-In pleading the liability of the heir it is not necessary to aver in the declaration that the heir has assets by descent, but it devolves upon him to plead riens per discent.2

§ 1469. Knowledge of Contents of Instrument-Blind and Illiteral Persons-Every deed by which anything shall pass from one to another, where the party executing it has no understanding but by hearing only, ought to be read to him; so one who is not lettered is reputed in law as one who cannot see, but hear only, and all his understanding is by hearing, and so a man who is lettered and cannot see, is taken in law as a man not lettered, and, therefore, if a man is blind and the deed is read to him in any other manner than correctly, he may avoid the deed, because all his understanding in such case is by his hearing.3

Where it appears that the grantor could write, the presumption is that he could read writing, especially where there is nothing in the evidence to show that he could not. He is deemed in law to know the contents of his deed.

§ 1470. Construction of Conveyances The courts are very liberal in construing deeds so as to give them effect if possible, and, although intended to come within one class, if they cannot be made to operate in that form on account of some defect, they are often found capable, and permitted to accomplish the object of the parties, by a construction that brings them within some other class of deeds known to the law.5

While obscure and indefinite language used in a deed or

contract may be explained by oral testimony showing the surrounding circumstances of the parties, so that it may be construed from the standpoint occupied by the parties, yet it can never be construed so as to contradict, change or vary the language used."

It is well settled that a written contract, unambiguous in its terms, cannot be varied, contradicted or modified by parol evidence of anything that occurred at or prior to the time when such written contract was executed. It is conclusively presumed that the whole agreement of the parties is included in the writing. Nor can a sealed executory contract be altered, changed or modified by parol agreement."

The law presumes, in the absence of proof to the contrary, that a deed is what it purports to be, an absolute conveyance; and the burden of proof is upon the party claiming such an absolute deed to be a mortgage, to sustain his claim by evidence sufficient to overcome the presumption of law. To show that a deed absolute on its face is a mortgage, the evidence must be clear and satisfactory, and convincing. In order to constitute a mortgage there must be an ownership of the land by the party making the claim. And also that a debt existed between the mortgagor and the alleged mortgagee.

A construction which requires the court to reject an entire clause in a deed is not to be admitted, except from unavoidable necessity.9

Where it is claimed that in drawing up the deed under which the complainants claim title that the word "heirs" was used by mistake for the word "children," such a mistake presents no case for the reformation of the deed, because such a mistake is one of law.

But in construing a deed made to the grantee and "her

6-Seymour v. Bowles, 172 Ill. 521.

7-Schneider v. Sulzer, 212 Ill. 87; Tulluride Power Co. v. Crane Co., 208 Ill. 218; Alschuler v. Schiff, 164 Ill. 298.

8-Gannon v. Moles, 209 Ill. 180. 9-Riggin v. Love, 72 Ill. 553.

minor heirs," the word heirs will be construed to mean "children" where it appears on the face of the deed that the ancestor is living, and thereby excludes the idea that the word "heirs" was used in its technical sense." 10

A deed made in pursuance with a recorded bond therefor relates back to the date of the bond and conveys the title as it stood at the time of the record of the bond.11

§ 1471. Intention of Parties to Be Ascertained and to Control-The legitimate purpose of all construction of a contract or other instrument in writing, is, to ascertain the intention of the party or parties making the same, and when this is determined, effect will be given thereto, unless to do so would violate some established rule of property. The nature and quantity of an interest granted by a deed are always to be ascertained by the deed itself, and are to be determined by the court as a matter of law. The intention of the parties will control the court in construction of the deed, but it is the intention apparent and manifested by the deed construing each clause, word and term involved in construction according to its legal import, and giving to each thus construed its legal effect. It is not to be presumed that parties use words or terms in the conveyance without intending some meaning should be given to them, or without an intent that the effect legitimately resulting from their use should follow; hence, if it can be done consistently with the rules of law, that construction will be adopted which will give effect to the instrument, and to each word and term employed, rejecting none as meaningless or repugnant.

12

In construing a deed or conveyance the intention of the grantor is to be looked to, and it must be found in the deed, and in doing so well known rules of interpretation are applied.18

When used as words of limitation, the words "heirs of

10-Seymour v. Bowles, 172 Ill. 521. 11-Snapp v. Pierce, 24 Ill. 156.

12-Lehndorf v. Cope, 122 Ill. 317. 13-Chapin v. Nott, 203 Ill. 341.

the body" indicate all those persons who, upon the death of the immediate ancestor, succeed to the estate from generation to generation. If the words are so limited as not to include the whole line of inheritable succession, but only to designate the individuals who are, upon the death of the ancestor, to succeed to the estate and who are themselves to constitute the source of future descent, they are words of purchase. And when it is manifest that the words "heirs of the body" are words of purchase they will be so held. Especially if they are limited by the words, "their heirs and assigns." So limited they do not indicate descendants of the life tenant who are to take in succession, from generation to generation, but only the individuals who may be his heirs at his decease, and who themselves become the ancestors from whom the succession is to be derived and from whom an estate of fee simple will descend.14

Where a will gives an estate to one during her life, "and to the heirs of her body begotten, after her death," the gift is to the class named in the devise. And where the life estate is at an end, the "heirs of her body," living at the death of the testator, take their devise, not as the heirs of the life tenant generally, but by virtue of the original gift to them as a class, to be ascertained when the will took effect. That is on the death of the testator.15

The grant in a deed was to "John E. Leinweber and Elizabeth Leinweber for and during the natural life of the former only, and for and during the widowhood of the latter as a widow of said John E. Leinweber only, in case she survive him, with remainder over to the children and their descendants of the said John E. Leinweber upon the decease of both of said grantees as well as upon the decease of John E. Leinweber and the remarriage of said Elizabeth Leinweber." It was considered by the court that

14-Aetna L. I. Co. v. Hoppin, 249 Ill. 406.

15-Lancaster v. Lancaster, 187 Ill.

540.

the words "and their descendants" were words of purchase, and being words of purchase it was possible for the descendants of the children to take concurrently with their parents or in substitution of deceased parents. Unless the instrument creating the estate indicates a contrary intention, the weight of authority seems to be that in a grant to several and their descendants, the descendants would take by way of substitution, only, and not in competition with their parents living at the time of distribution. As the children were to take in substitution the remainders vested in the children of John E. Leinweber in being at the time the deed was made, subject to reduction on the birth of another child, and further subject to defeasance by death, during the lifetime of John E. Leinweber, of any remainderman leaving descendants, in which case the descendants would take their deceased ancestor's share.16

§ 1472. Ambiguous Instruments Construed Most Strongly Against the Grantor-Where a deed is so drawn that some will read it one way and some another, it is a well established rule that that meaning shall be adopted which is adverse to the interest of the grantor.17

§ 1473. Punctuation Not Regarded in Construing Instruments It is one of the rules in construing deeds, that no regard is to be paid to punctuation; so, the omission of a comma, or a semi-colon after what apparently is regarded as the first call, is of no moment.18

§ 1474. Presumption Where Father and Son Have the Same Name It will undoubtedly be presumed that the name mentioned in the conveyance is that of the father, instead of the son, where the father and son have the same name, and where such a conveyance is made, leaving it uncertain on the face of the deed whether the grant is to the 18-Vinson v. Vinson, 4 Ill. App.

58.

16-Pohlman v. Leinweber, 288 Ill.

17-Alton v. Illinois Trans. Co., 12 Ill. 38; Vinson v. Vinson, 4 Ill. App.

138.